ULTRA VIRES ACTS OF LOCAL GOVERNMENT UNITS

Ultra Vires Act

• An ultra vires act is one committed outside the object for which a corporation is created as defined by the law of its organization and
therefore beyond the powers conferred upon it by law.
• Two types of ultra vires act: Ulta Vires in the primary sense which is void; and Ultra Vires in the secondary sense which is subject to
ratification. The second type admits the application of the principle of estoppel.

• Ultra Vires Act Explained Further from the case:

LAND BANK OF THE PHILIPPINES, PETITIONER, VS. EDUARDO M.

CACAYURAN, [ G.R. No. 191667, April 17, 2013 ], citing the case of Middletown Policemen Benevolent Association vs. Township of Middletown
(162 N.J. 361, 368 (2000)

• There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic
power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires in the primary sense
and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of
estoppel in the interest of equity and essential justice.

• In other words, an act which is outside of the municipality’s jurisdiction is considered as a void ultra vires act, while an act attended only
by an irregularity but remains within the municipality’s power is considered as an ultra vires act subject to ratification and/or validation.
To the former belongs municipal contracts which (a) are entered into beyond the express, implied or inherent powers of the local
government unit; and (b) do not comply with the substantive requirements of law e.g., when expenditure of public funds is to be made,
there must be an actual appropriation and certificate of availability of funds; while to the latter belongs those which (a) are entered into
by the improper department, board, officer of agent; and (b) do not comply with the formal requirements of a written contract e.g., the
Statute of Frauds.

DISCIPLINARY ACTIONS
Grounds for Disciplinary Actions for Elective Officials

1. Disloyalty to the Republic of the Philippines;

2. Culpable violation of the Constitution;
3. Dishonesty, oppression, misconduct in office, gross negligence or dereliction of duty;
4. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;
5. Abuse of authority;
6. Unauthorized absence for 15 consecutive working days, except in the case of members of the sanggunian;
7. Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and
8. Such other grounds as maybe provided in the LGC and other laws.

• AN ELECTIVE OFFICIAL MAY BE REMOVED FROM OFFICE ON THE GROUNDS ENUMERATED ABOVE BY ORDER OF THE PROPER COURT.

Administrative Proceedings

 A verified complaint against any erring local elective official shall be prepared as follows: (1) A complaint against any elective official of a
province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President; (2) A
complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to
the Office of the President; and (3) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or
sangguniang bayan concerned whose decision shall be final and executor (Section 61, 1991 LGC).
 In administrative proceedings, procedural due process simply means the opportunity to explain one’s side or the opportunity to seek a
reconsideration of the action or ruling complained of. Procedural due process has been recognized to include the following: (1) the right to
actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights; (2) a real opportunity to be
heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights; (3) a
tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of
honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration
during the hearing or contained in the records or made known to the parties affected (Casimiro vs. Tandog, G.R. No. 146137, June 8,
2005).

 Under the 1991 LGC, an elective local official must be a citizen of the Philippines. One who claims that a local official is not has the burden of
proving his/her claim. In administrative cases and petitions for disqualification, the quantum of proof required is substantial evidence
(Matugas vs. Comelec, G.R. No. 151944, January 20, 2004).

The lack of verification in a letter-complaint may be waived, the defect not being fatal. Verification is a formal, not jurisdictional requisite
(Joson vs. Torres, G.R. No. 131255, May 20, 1998).
 • Under Section 61 of the 1991 LGC, a complaint against any elective official of a municipality shall be
filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the
President (Balindong vs. Dacalos, G.R. No. 158874, November 10, 2004).
• The voting following the deliberation of the members of the sanggunian in administrative cases does
not constitute the decision unless this was embodied in an opinion prepared by one of them and
concurred in by the majority. Until they have signed the opinion and the decision is promulgated, the
councilors are free to change their votes. No notice of the session where a decision of the sanggunian
is to be promulgated on the administrative case is required to be given to the anymperson. The
deliberation of the sanggunian is an internal matter (Malinao vs. Reyes, G.R. No. 117618, March 29,
1996).
• Only the courts can remove a local elective official. The President and higher supervising LGU have no
such authority.
• The Rules and Regulations Implementing the 1991 LGC, insofar as it vests power on the “disciplining
authority” to remove from office erring elective local officials, is void. Local legislative bodies and/or the
Office of the President on appeal cannot validly impose the penalty of dismissal from service on erring
elective local officials. It is beyond cavil that the power to remove erring elective local officials from
service is lodged exclusively with the courts (Pablico vs. Villapando, G.R. No. 147870, July 31, 2002).
• The sangguniang bayan is not empowered to remove an elective local official from office. Section 60 of
the 1991 LGC conferred exclusively on the courts such power. Thus, if the acts allegedly committed by
a barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from
office, the case should be filed with the regional trial court (Sangguniang Barangay of Don Mariano
Marcos, Bayombong vs. Punong Barangay Martinez, G.R. No. 170626, March 3, 2008).
• A sangguniang panlalawigan may cause the removal of a municipal mayor who did not appeal to the
Office of the President within the reglementary period the decision removing him/her from office
(Reyes vs. Comelec, G.R. No. 120905, March 7, 1996).
 The President may suspend an erring provincial elected official who committed several administrative
offenses for an aggregate period exceeding six months provided that each administrative offense, the
period of suspension does not exceed the 6-month limit (Salalima vs. Guingona, G.R. No. 117589-92,
May 22, 1996).

Preventive Suspension of Local Elective Officials

• Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. This is not a penalty.
• The purpose of the suspension order is to prevent the accused from using his/her position and the
powers and prerogatives of his/her office to influence potential witnesses or tamper with records
which may be vital in the prosecution of the case against him/her. If after such investigation, the charge
is established and the person investigated is found guilty of acts warranting his/her suspension or
removal, then he/she is suspended, removed or dismissed. This is the penalty. Not being a penalty, the
period within which one is under preventive suspension is not considered part of the actual penalty of
suspension. Thus, service of the preventive suspension cannot be credited as service of penalty
(Quimbo vs. Gervacio, G.R. No. 155620, August 09, 2005).
• A preventive suspension may be imposed by the disciplinary authority at any time: (1) after the
issues are joined, i.e., respondent has filed an answer; (2) when the evidence of guilt is strong; and
(3) given the gravity of the offenses, there is great probability that the respondent, who continues to
hold office, could influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence. These are the pre-requisites. However, the failure of respondent to file his/her
answer despite several opportunities given him/her is construed as a waiver of his/her right to
present evidence in his/her behalf. In this situation, a preventive suspension may be imposed even if
an answer has not been filed (Joson vs. Court of Appeals, G.R. No. 160652, February 13, 2006).
 • The rule under the Ombudsman Act of 1989 is different. Ombudsman Act of 1989 does not require that
notice and hearing precede the preventive suspension of an erring official. Only two requisites must
concur to render the preventive suspension order valid. First, there must a prior determination by the
Ombudsman that the evidence of respondent’s guilt is strong. Second, (1) the offense charged must
involve dishonesty, oppression, grave misconduct or neglect in the performance of duty; (2) the charges
would warrant removal from the service; or (3) the respondent’s continued stay in the office may
prejudice the case filed against him (Carabeo vs. Court of Appeals, G.R. Nos. 178000/ 178003, December
4, 2009).
• Section 63 of the 1991 LGC which provides for a 60-day maximum period for preventive suspension for a
single offense does not govern preventive suspensions imposed by the Ombudsman. Under the
Ombudsman Act, the preventive suspension shall continue until the case is terminated by the Office of
the Ombudsman but not more than six months (Miranda vs. Sandiganbayan, G.R. No. 154098, July 27,
2005).
• Under the 1991 LGC, a single preventive suspension of local elective officials should not go
beyond 60 days. Thus, the Sandiganbayan cannot preventively suspend a mayor for 90 days
(Rios vs. Sandiganbayan, G.R. No. 129913, September 26, 1997).
• Direct recourse to the courts without exhausting administrative remedies is not permitted. Thus, a
mayor who claims that the imposition of preventive suspension by the governor was unjustified and
politically motivated, should seek relief first from the SILG, not from the courts (Espiritu vs. Melgar,
G.R. No. 100874, February 13, 1992)

 The Judiciary must not intervene because the office orders issued by the Provincial Agriculturist
both concerned the implementation of a provincial executive policy. The matter should have
been raised with the Provincial Governor first (Ejera vs. Merto, G.R. No. 163109, January 22,
2014).
• A municipal official placed under preventive suspension by a sangguniang panlalawigan must file a
motion for reconsideration before the said sanggunian before filing a petition for certiorari with the
Court of Appeals (Flores vs. Sangguniang Panlalawigan of Pampanga, G.R. No. 159022, February 23,
2005).
• A municipal mayor may file before the Court of Appeals a petition for certiorari, instead of a petition for
review assailing the decision of the Office of the President which reinstates the preventive suspension
order issued by the provincial governor. The special civil action of certiorari is proper to correct errors
of jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of
jurisdiction. Exhaustion of administrative remedies may be dispensed with when pure questions of law
are involved (Joson vs. Court of Appeals, G.R. No. 160652, February 13, 2006).
LOCAL LEGISLATION
Legislative enactments:
 Ordinance - permanent in character; has the force and effect of law
 Resolution - temporary; expresses the sentiment of the legislative body
LCG - IRR. ART. 107. ORDINANCES AND RESOLUTIONS
- the following rules shall govern the enactment of ordinances and resolutions:
A. Legislative actions of a general and permanent character shall be enacted in the form of
ordinances, while those which are of temporary character shall be passed in the form of resolutions.
Matters relating to proprietary functions and to private concerns shall also be acted upon by
resolution.
B. Proposed ordinances and resolutions shall be in writing and shall contain an assigned number, a
title or caption, an enacting or ordaining clause, and the date of its proposed effectivity. In addition,
every proposed ordinance shall be accompanied by a brief explanatory note containing the
justification for its approval. It shall be signed by the author or authors and submitted to the
 secretary to the sanggunian who shall report the same to the sangguinan at its next meeting.
C. A resolution shall be enacted in the same manner prescribed for an ordinance, except that it need
not go through a third reading for its final consideration unless decided otherwise by a majority of all
the sanggunian members.
D. No ordinance or resolution shall be considered on second reading in any regular meeting unless it
has been reported out by the proper committee to which it was referred or certified as urgent by the
local chief executive.
E. Any legislative matter duly certified by the local chief executive as urgent, whether or not it is
included in the calendar of business, may be presented and considered by the body at the same
meeting without need of suspending the rules.
F. The secretary to the sanggunian of the province, city or municipality shall prepare copies of the
proposed ordinance or resolution in the form it was passed on second reading, and shall distribute to
each sanggunian member a copy thereof, except that a measure certified by the local chief executive
concerned as urgent may be submitted for final voting immediately after debate or amendment
during the second reading.
G. No ordinance or resolution passed by the sanggunian in a regular or special session duly called for
the purpose shall be valid unless approved by a majority of the members present, there being a
quorum. Any ordinance or resolution authorizing or directing the apyment of money or creating
liability, shall require the affirmative vote of a majority of all the sanggunian members for its
passage.
H. Upon the passage of all ordinances and resolutions directing the payment of money or creating
liability, and at the request of any member, of any resolution or motion, the sanggunian shall record
the ayes and nays. Each approved ordinance or resolution shall be stamped with the seal of the
sanggunian and recorded in a book kept for the purpose.
THE LEGISLATIVE PROCESS AND THE THREE - READING RULE
FIRST READING:
- Reading the Title and the author’s, then referral to appropriate committee.
PROPOSALS/ SUGGESTIONS:
- Sources: LCE, Community, Associations, Groups, Individual, and/or the Sangguniang Member/s.
WRITING OF THE PROPOSED ORDINANCES/RESOLUTIONS
- By: the author/s (members/s of the sanggunian)
PROPOSED ORDINANCE/ RESOLUTION
- is submitted to the Sanggunian Secretary
COMMITTEE RENDERS A REPORT WITH ITS RECOMMENDATIONS
- If recommendation is favorable, it goes to Second Reading. Otherwise, it is laid on the table.

SECOND READING:

- Debates, Discussions, Amendments. Conduct of public consultation, if necessary. Votes may be taken on the
proposed amendments.

THIRD READING:

- Final version of the proposed ordinance shall be read, and voting shall follow. If the voting is favorable, it
goes to the LCE. Otherwise, end of the matter (archived)
LCE ACTION:

A. Approves the ordinance; or

B. Allows the lapse of the period required for the LCE to act (15 days - province; 10 days -
city/municipality) thus the ordinance shall be deemed approved; or

C. Vetoes the ordinance on the ground that it is ultra vires or prejudicial to the public welfare, stating
his reasons therefor in writing. The verb shall be communicated to the Sanggunian within the period
required for the LCE to act.

LCE VETO MAY BE OVER - RIDDEN BY TWO - THIRDS VOTE OF ALL THE MEMBERS, THUS MAKING THE
ORDINANCE/RESOLUTION EFFECTIVE. If vetoed,

REVIEW OF THE ORDINANCE/RESOLUTION

REVIEW OF COMPONENT CITY AND MUNICPAL ORDINANCE OR RESOLUTIONS BY THE SANGGUNIANG

PANLALAWIGAN

A. Within three (3) days after approval, the